G.P. Agarwal, Member (J)

1. The Revenue has filed the present appeal against the impugned Order-in-Appeal passed by the Collector of Customs and Central Excise (Appeals), Cochin.

2. Shortly put the facts of the case are that the respondents imported 1610 pieces of Latex Foam Sponge. On their behalf M/s. Achuthan Pillai Co. filed Ex-bond Bill of Entry 43, dated 3-12-1985 for the clearance of the imported goods which were assessed to duty under Heading 4005.91/4005.00 read with Notification No. 71/68-C.E. The respondents paid the duty on 9-4-1986 as assessed. However, it appears that the Internal Audit Department of the Customs House pointed out that the imported goods were correctly classifiable under Heading 4008.11 which resulted in a short collection of duty. As a sequel thereof, a Show Cause Notice dated 9-10-1986 was issued to the respondents calling upon them to pay the duty amounting to Rs. 20,20,370.80 on the ground that the goods were assessable as Cellular Rubber Sheets under Heading 4008.11. It was confirmed by the Assistant Collector of Customs, Cochin, vide his Order-in-Original dated 1-4-1987. Against that Order the respondents filed their appeal before the Collector of Customs (Appeals), Madras, who vide his Order No. C. 27AP/68/87, dated 20-8-1987 allowed the appeal and set aside the original order holding that the demand was received by the respondents after expiry of the statutory time limit. Against that Order of the Collector (Appeals), the Revenue preferred the appeal before this Tribunal. The Tribunal vide its Order No. 722/88-C, dated 19-9-1988 set aside the Order of the Collector (Appeals) and remanded the matter to the Assistant Collector for disposal of the dispute in accordance with law and after giving due opportunity to both sides. On remand the respondents contended before the Assistant Collector that they received the Show Cause Notice, dated 9-10-1986 demanding the duty on 14-10-1986 and produced the photo copy of the demand letter bearing their rubber stamp and the date 14-10-1986 to show that it was received by them on 14-10-1986. It was also contended that the said M/s. Achuthan Pillai Co. who had filed the Bill of Entry for clearance has ceased to be their agents after clearing the subject goods and as on 9-10-1986 they had not been authorised or empowered by the respondents to receive notices under the Customs Act on their behalf. Therefore, any notice demanding the differential duty served on M/s. Achuthan Pillai Co. was evidently not a valid service of notice of the respondents. However, the Assistant Collector negatived the said defence of the respondents and confirmed the demand inter alia observing that the demand notice was served on the said M/s. Achuthan Pillai Co. within time which is binding on the respondents. Against that Order of the Assistant Collector the respondents filed their appeal before the Collector of Customs and Central Excise (Appeals), Cochin, who vide his impugned Order-in-Appeal allowed the appeal and set aside the said Order passed by the Assistant Collector. Hence the present appeal by the Revenue.

3. Appearing on behalf of the Revenue, Shri K.K. Bhatia, learned JCDR, submitted that the Collector (Appeals) should have gone deep into the merits of the case and he should not have confined himself only to the point of limitation under Section 28 of the Customs Act, 1962. He erred in setting aside the Order of the Assistant Collector on the mere assertion by the respondents that the demand notice sent to them was received by them on 14-10-1986; even though the fact remains that the same demand notice was received by the respondent's clearing agents, namely, M/s. Achuthan Pillai Co. on 9-10-1986 itself, that is to say, within the time limit prescribed under Section 28 of the Customs Act. It was stressed by him that the learned Collector (Appeals) should have adverted himself to Section 153 of the Customs Act which provides for service or order, decision e